COGI-tation on privacy/open government at Legislature

There is a scheduled session at the Capitol next week which can be very informative for the public and others on information proposals that can have impact on your privacy/civil liberties and accountability/transparency of government.  Here is the info:

MNCOGI Announcement-

A discussion of legislative issues in Room 118, Capitol, on January 28. Forward to anyone who might be interested.

You are invited to an open discussion of legislative proposals regarding the MN Data Practices Act.

Here are the details:

On January 28th, the Minnesota Coalition on Government Information (MNCOGI) will host a public discussion on Data Practices issues facing the 2013 Minnesota Legislature. 

Issues to be discussed will include the status of license plate

scan data; whether citizen e-mail addresses held by

government entities should be public or private; the extent to

which personnel data about public officials should be public,

and the degree to which “criminal intelligence data” should be

kept secret.

MNCOGI board member Don Gemberling will present

MNCOGI’s positions on several issues that will come before

the legislature this year.! Mr. Gemberling was the past director

of IPAD, the office within the Department of Administration

responsible for Data Practices issues.

MNCOGI is a coalition of attorneys, academics, journalists,

librarians, and others that advocates for government

transparency, and provides education on government data

issues.

COGI-tations are free, public forums sponsored by the

Minnesota Coalition on Government Information

When: " " Monday, January 28, 2013

Where: ## MN Capitol Meeting

# Room 118

Time:   2pm - 3:30pm

Transparency, union relations, and data practices, Chief Harteau comments.

In a blog post which I did on November 28th, 2012 I posed several questions to the new Minneapolis Police Chief, Janee Harteau.  The Chief after a request by me to answer the questions took the time to do so.  I appreciate that and this is her responses.

Explain to the public what transparency means to you?

"First, transparency to me is being candid, honest, approachable, and open to questions.  I can accept and expect criticism but I hope to be treated fairly, just as I believe most want to be treated.  I will make mistakes, and members of this department will make mistakes.  I will do so with the best of intentions and effort, however.  I also learn from those mistakes.

I feel the MPD needs to improve and focus more on effective communications, both internally and externally so that people have what they need to achieve their desired results and be most effective.  Some of those messages and conversations will come from me, others will and should come from one of the many talented professionals we have in this department."

Can you define what the relationship between you and the Minneapolis Police Union should be?

"As far as the police union, I believe the union should have a seat at the table.  I have and will continue to work with them to ensure that we can accomplish what we need, while being cognizant of union rules and contracts.  We have not and will not always agree, but we do need to find ways to work together.  The City of Minneapolis and the members of this department deserve that."

Are you familiar with the basics and nuances of the Data Practices Act as it applies to a law enforcement agency?

"And yes, I do understand the Data Practices Act and seek advice from my attorney’s when a question arises.  I don’t believe in purposely violating or fringing on anyone’s rights.  What kind of police officer or police chief would I be if I did??  I appreciate your thoughts on training.  This is certainly an area of focus for me."

Chief Harteau did not answer one question in the email response which was the following:

Do you support collecting information on innocent law abiding Americans?

In the latter part of my post I also made comments about databases and "when Minneapolis Police use the many databases the cops have access to, they follow the law.  What will the training for that and the enforcement be?"  It seems the Chief realizes that the public wants accountability and transparency when it comes to Minneapolis Police using databases.  She indicates it's a focus. More than likely because of big dollar payout, but also because she realizes that the public will not tolerate abuses of Driver Vehicle Service databases or any of the other databases MPD has access to.  But proof is in the pudding.  It seems she's willing to work with the public on this matter.

I indicated to the Chief I will print her response in whole. Once again I thank Chief Harteau.  Here is a copy of email which I received on January 2, 2013.

---------------------------------------------------------------------------------------------------------

Rich,

I understand you have some questions of me.  First, thank you for asking and not just assuming my answers.  I am incredibly busy but wanted to answer what I could in the time I have today.

First, transparency to me is being candid, honest, approachable, and open to questions.  I can accept and expect criticism but I hope to be treated fairly, just as I believe most want to be treated.  I will make mistakes, and members of this department will make mistakes.  I will do so with the best of intentions and effort, however.  I also learn from those mistakes.

I feel the MPD needs to improve and focus more on effective communications, both internally and externally so that people have what they need to achieve their desired results and be most effective.  Some of those messages and conversations will come from me, others will and should come from one of the many talented professionals we have in this department.

As far as the police union, I believe the union should have a seat at the table.  I have and will continue to work with them to ensure that we can accomplish what we need, while being cognizant of union rules and contracts.  We have not and will not always agree, but we do need to find ways to work together.  The City of Minneapolis and the members of this department deserve that.

And yes, I do understand the Data Practices Act and seek advice from my attorney’s when a question arises.  I don’t believe in purposely violating or fringing on anyone’s rights.  What kind of police officer or police chief would I be if I did??  I appreciate your thoughts on training.  This is certainly an area of focus for me.

I hope you find my responses insightful.

Janeé Harteau | Chief of Police

Minneapolis Police Department | 350 S Fifth Street | Room 130

Minneapolis, MN 55415 | 612.673.5643 office| 612.673.2613 fax

Leadership is a Process…NOT a Position

See it. Own it. Solve it. Do it………Change the Culture--Change the Game (The Oz Principle)

The Secret History of Electronic Privacy in Minnesota

In late spring of 1988, Mark Shields, then the Superintendent of the BCA was in a panicky mood.  He and the Attorney General were trying to pass a major bill that would have great impact on our privacy rights.  It would also give power to Minnesota law enforcement to encroach on our email communications and records.  It also gave a way for cops to get phone numbers you dialed or who dialed you for investigation purposes..

The bill were amendments to the Minnesota Privacy of Communications law, Chapter 626A which has been law since 1969.  The chapter currently regulates many aspects as how law enforcement gets access to our emails, cell phone records, computer records and do interceptions of wire, oral, and electronic communications.

What the 1988 amendments did was place into state law Congressional passed provisions from 1986.  The US Congress passed in 1986 the Electronic Communications Privacy Act. (ECPA)  An attempt to place some limits on law enforcement with electronic communications as policymakers at that time understood it to be.  There was a provision in ECPA that states had to pass the minimum protections within two years of passage.

Federal law allows for states to have more protection and rights.  The federal law sets a minimum floor.

Why was Superintendent Shields in a panicky, or one could say edgy mood?  I was raising specific questions and concerns about the bill and why there should not be more transparency and accountability, but also that the Legislature should give Minnesotans more protections and rights in the privacy of their communications.

What the Superintendent and the Attorney General were up against was the coming end of the 1988 Legislative session.  The bill was introduced very late and it needed to pass in order to be in compliance with the Federal law, but also for law enforcement to be able to have the authority to do such things such as wiretaps, and have access to electronic communications.

There was a special meeting called of the Minnesota Senate Judiciary Subcommittee on Privacy to hear the bill. The members were,  Randy Peterson, Gene Merriam, Fritz Knaak, and Dick Cohen

The Chief Author of the bill was Senator Randy Peterson, currently a Minnesota Court of Appeals Judge.

At the hearing, each section of the bill was presented separately with the Superintendent and Attorney General representative making their points and I following them with my views.

After the hearing the subcommittee decided to pass the legislation with a sunset to take effect on August 1, 1989.  The sunset did two things, give law enforcement what it needed to do their job, but also give policymakers a chance to digest the implications of the law and come back with possible changes the following session.

Senator Peterson, Representative Pugh (now a 1st District Judge) and I worked throughout the interim to come back with specific privacy protections and accountability provisions for Minnesotans in the 1989 session.

But that was in 1989. Congress passed the Electronic Communications Privacy Act in 1986 and we passed the provisions in 1988-1989.  The 626A.26 through 626A.34 language mirrors the perception of technology in 1986. It is creaky and antiquated. It does not deal with data stored in the cloud or the horrendous amounts of data electronic devices which we use collect on us. 

Minnesota law enforcement authorities should have to go to a judge and get a warrant before they can read our unopened email after 180 days,  or access our records, documents, and calendars we store with third parties. or get our GPS/location data.
         

Two meetings: prescription records and license plate scans

Today I had a choice to make.  I could have gone to the Criminal Justice and Juvenile Information Policy Group meeting which dealt with license plate scans being collected and retained by police by the millions or to the Minnesota Board of Pharmacy Advisory Board that oversees the Minnesota Prescription Monitoring Program (MNPMP) database which has over 7 million prescription records on a million plus Minnesotans.

I decided to go to MNPMP meeting because I am an advisory board member representing privacy concerns.  Every year there is an annual meeting talking about what legislation will be coming for the legislative session.  In past years there has been discussion about proposals to allow law enforcement easy access to your prescription record rather than the current law which is only through a search warrant or sharing your prescription records to others without you knowing about it.

Well the legislative draft bill came out and was discussed point by point.  The part I did not like is where the health-related licensing boards which includes the licensing of nurses to social workers will have direct access to licensee's prescription records if they are under investigation in certain situations. I stated at the meeting something like this, "Build a database for one purpose, and others will come for other purposes."  This is so true in the world of databases.  Points I raised were ones like, Would the individual know about their records being used, or why is prescription record which was collected for one purpose, now being used for another purpose without the person's consent or knowledge.

The Board of Pharmacy though I must compliment has been steadfast in following the law which the drug database is regulated by. 

Now to the Criminal Justice and Juvenile Information Policy Group meeting which was to make a decision about the collection and retention of millions of records of where you and I travel if we happen to be owners of cars collected secretly by the cops.

Per Eric Roper's Star Tribune Blog post  the Policy Group made up of Commissioners, judges, and others decided to make the license scan data private, but deleted the retention of 180 days for the data if there were no hits for law enforcement investigation.

Now I have to scratch my head on this one.  By deleting the retention of 180 days, is the Policy Group saying with all intents and purposes, DO NOT KEEP OR COLLECT LICENSE SCANS ON INNOCENT AND LAW ABIDING PEOPLE, or are they saying the COPS CAN COLLECT ALL THE LICENSE SCAN DATA THEY WANT ON INNOCENT AND LAW ABIDING PEOPLE AND KEEP IT AS LONG AS THEY WANT.

I am perplexed.

By making it private there is no accountability as to how law enforcement will use this data.  My position has been all along if law enforcement is to use the license scans it should be only used for the hit that happens when a plate is matched with same.  For example, if a plate/car is hit with a match for a stolen car, police will do their action.  Under current law, some data will be private or confidential, but after the case is closed a great amount of the data is public. This maintains accountability and transparency.

On the other side of the coin if license scan data was to be maintained by the cops on innocent and law abiding people, the data should remain public for accountability and transparency purposes.  Law enforcement in Minnesota has had too many problems with databases over the past decade.  Who is Watching the Watchers if the data is secret?

Now I read the quote of Justice Anderson in the Strib piece in regards to the reason why the data should be classified as private.

"The problem with this data [is] it has -- to my mind -- some of the highest potential for misuse [than] about any kind of data we keep," said Supreme Court Justice Paul Anderson. "And if this data is out there public, just think about ...a stalker...divorce cases."

I disagree with the Justice.  Every kind of public data can be misused, and some current public data even higher potential then license plate scans which have no names attached.

But what about the misuse by law enforcement of this kind of data? Should law enforcement agencies of Minnesota collect and retain movements of law abiding and innocent people?

Now if the Policy Group by it's decision meant that Minnesota law enforcement cannot collect and retain Automatic License Plate Recognition data by the millions on innocent and law abiding Minnesotans and can only use and retain it with "hits" in which that data remains private, that is a good policy choice to begin discussions with at the Legislature.

Email to Minnesota Criminal Justice Policy Group on License Plate Cameras

This is an email which I sent to some members of the Minnesota Criminal Justice and Juvenile Justice Information Policy Group about their vote which they will hold on December 12, 2012 in regards to License Plate Scans.  Some may not get it because access to their email address is hard to come by.

"I have been a long time member of the Minnesota Criminal Justice and Juvenile Justice Information Task Force since it's inception.  Recently the Task Force took on the issue of Automatic License Plate Recognition(ALPR).  During the first discussion of the topic I voted no, because I think it is important for the task force to be true to it's mission as I view it and give the Policy Group the "full scoop" on what ALPR's can do, what reasons why law enforcement should be collecting this data, how will it be integrated in the criminal information system, and other related issues.  I do not believe it lived up to that expectation.  At that first meeting I and the representative of the Attorney General were the only ones that voted no.

Granted there was a working group organized to discuss the retention issue, but the decision was already made to make the license plate scan data private.  I was of the belief that the working group of the task force was not going to entertain other issues related to Automatic License Plate Recognition, which was the case.  On November 9th, 2012 the Task Force voted on the report from the work group recommending 180 day retention and the data be classified as private. I could not be at the meeting, but I stated to Dana Gotz for the record to mark me as a NO vote.

A basic rationale to have ALPR, for example is, car plates caught by cameras may be checked with known plates of a stolen car.  A “hit” could happen which then lets the police know the car may be stolen.  Law enforcement may take appropriate action.  But my concern is the collection of millions of innocent law abiding people's travels and movement which could be termed "non hits".

It has been my experience with my long and active interaction with Minnesota law enforcement on civil liberty and information issues the cops will find many uses for this kind of data which even you, the Policy Group, or the public may not even be aware of.  Even in the literature given to law enforcement as a guide/manual it is suggested the license plate data can be used to data mine for patterns and to link to databases.  A manual which I obtained about ALPR's directs law enforcement about using this new "toy" for Geo Fencing, pattern recognition, watch list development, and the broad category of "Homeland Security".

Should we routinely track innocent motorists in this way? The broader question is: Should law enforcement agencies of Minnesota collect and retain movements of law abiding and innocent people?  My answer is clear, it's no.
 
Bottom line, Minnesota law enforcement agencies who have the readers can track, record and store data on people on our streets, regardless of whether individuals are suspected of any crimes or not. Whether or not it is narrowed to only the "hits" to people suspected of crime is a decision that begins with the Policy Group."

License Plate Scan proposal voted on tomorrow

The location of the meeting where there will be discussion of a proposal to make license plate data collected by Automatic License Plate Readers classified as private data and retained for 180 days and sent to the Minnesota Legislature will be here:

Criminal & Juvenile Justice Information Policy Group Meeting

Date:  Wednesday, December 12, 2012

Time:  1:00 pm to 3:00 pm

Location:  Room 230, MN Judicial Center, 25 Rev. Dr. Martin Luther King Jr. Blvd., St. Paul, MN

St Paul City Council take time to know what you do

The St Paul City Council at it's December 5, 2013 meeting will be discussing and voting on their 2013 Legislative package(Item 25 on agenda).  Tucked in the the city's legislative desires is a simple sentence which says:

"Support a classification for criminal intelligence data consistent with our partners in law enforcement."

Now when I became aware of this I asked myself three questions:

Do the City Council members know anything about this issue and what it means?

Are they aware of the contentiousness of the proposal and debate about criminal intelligence at the Legislature for the past several years?

And does the public have a right to make comments on this proposal?

My answer was no.

So what I did I sent an email to members of the St Paul City Council and staff stating to them this was not a simple act of passing a one sentence statement, but can have:

1. Impact on individual civil liberties and privacy.

2. Allows for innocent and law-abiding people to be placed in files and databases at a low threshold of reasonable suspicion.

3. Consequences of First Amendment activities being monitored and under surveillance by law enforcement.

4. Issues of racial profiling by law enforcement, and

5. Have less accountability and transparency of law enforcement activities by making public data secret.

This afternoon I decided to follow up with the lobbyist for the City of St Paul and also some Council members.  The lobbyist was not pleased with my email.  We had some discussion.  Her perspective is the St. Paul Police are asking for the City Council to support this position.  I basically said that this is and has been a contentious issue at the Legislature for several years.  It is important to let City Council members know that, I stated.  I got the impression she did not feel the one sentence support for making data secret was not a big deal.

I then met with two City Council members ever so briefly about the email I sent.  One member had just read it and had to think about it.  Another Council member was gracious enough to speak with me and give me a copy of the St Paul Police Department response.  We bantered for a minute or two more and then I was struck by the elected officials remark saying "It doesn't matter."   The comment was in response about possibly removing the "Support a classification for criminal intelligence data consistent with our partners in law enforcement."

I took the remark to mean that generally nobody cares about a 14 word sentence being a part of the 2013 St Paul Legislative package.

I care and I think many other residents in St Paul do.

By voting in favor of a "criminal intelligence classification" proposal allows law enforcement to keep secret information on individuals who police think may commit a crime. The low threshold used to get into the intelligence file is reasonable suspicion. Should government be collecting information on people who are law-biding in their secret files?  How are First Amendment activities protected from surveillance?  What information that has been public for decades in Minnesota no longer will be?  Who will the information be shared with?  What information that is now public will no longer be public and made secret?  Where is the accountability and transparency?

"It does matter" members of the St Paul City Council, how you vote on legislative proposals.  By supporting proposals you are speaking for 285,000 people.

The St Paul City Council having recently voted to payout $300,000 plus to Anne Marie Rasmusson should be mindful of the creation of new databases and law which creates similar situations and penalties.